The Constitution - Executive agreements

Photo by: Gino Santa Maria

Reliance on the treaty power has declined since World War II, as
presidents have increasingly turned to the use of executive agreements as
a means of securing unilateral control of American foreign relations. When
the president acts unilaterally, the agreement is referred to as a
"sole executive agreement." When the president acts with the
approval of a simple majority of both houses of Congress, the agreement is
known as a "legislative-executive agreement." Presidents
have "assumed" discretion to decide whether to pursue an
international agreement as a treaty, a sole executive agreement, or in the
form of a legislative-executive agreement. The president's decision
typically hinges on political factors, including the likelihood of
securing Senate approval. Presidents often have chosen to exclude the
Senate in making some controversial and historic international pacts
through the channel of executive agreements, among them, the
destroyer-base deal with Great Britain in 1940, the Yalta and Potsdam
agreements of 1945, the Vietnam peace agreement of 1973, and the Sinai
agreements of 1975.

Controversy surrounds the legal authority of the president to make
executive agreements. The practice of unilateral presidential accords with
foreign nations conflicts with the constitutional emphasis on joint
decision-making, and with the Framers' understanding of the reach
and breadth of the treaty power, which Hamilton described in a letter
under the pseudonym "Camillus" as "competent to all
the stipulations which the exigencies of national affairs might require;
competent to the making of treaties of alliance, treaties of commerce,
treaties of peace, and every other species of convention usual among
nations…. And it was emphatically for this reason that it was so
carefully guarded; the cooperation of two-thirds of the Senate with the
president, being required to make any treaty whatever." The text of
the Constitution makes no mention of executive agreements. Moreover, there
was no reference to them in the Constitutional Convention or in the state
ratifying conventions. The
Federalist Papers
are silent on the subject as well. There is, then, no support in the
architecture of the Constitution for the use of executive agreements. Yet
their usage has flourished; presidents claim independent constitutional
power to make them, and the judiciary has sustained such presidential
claims of authority. The question of the constitutional authority that
affords presidents a unilateral capacity to make executive agreements is
to be distinguished from what would properly be characterized as
legislative-executive agreements, which Congress has authorized the
president to make and usually inspire little controversy, if only because
they are more desirable than unilateral agreements from a constitutional
perspective.

Presidents have advanced four sources of constitutional authority: (1) the
president's duty as chief executive to represent the nation in
foreign affairs; (2) the authority to receive ambassadors and other public
ministers; (3) the authority as commander in chief; and (4) the duty to
"take Care that the laws be faithfully executed." These
claims are particularly open-ended, undoubtedly in conflict with
congressional powers, and they strain the reach of credibility. It may
well be the case that the president, in the context of military
hostilities authorized by Congress, may, in his capacity as commander in
chief, find it desirable to enter into a cease-fire agreement with an
enemy, although this would be subject to congressional control. It may be
necessary as well, in a military context, for the president to strike an
agreement regarding protection of troops or deployment of troops. But it
is difficult to justify unilateral executive agreements on the basis of
these other claims.

Congressional efforts to rein in the practice of executive agreements and
stem the tide of unilateralism have been largely unsuccessful. The first
and most prominent effort occurred in 1951, when Senator John Bricker
proposed a constitutional amendment to limit the use and effects of
executive agreements and treaties within the United States. Supporters of
the Bricker Amendment, including leaders of the American Bar Association,
found virtue in the proposal for various reasons. Some
"resented," as Alexander DeConde explained,
"executive agreements such as those made at Yalta," and
sought to curtail presidential unilateralism in foreign affairs. Others
were fearful of the effect within the United States of such treaties as
the UN Charter, the Genocide Convention, and the UN's draft
covenant on human rights. Still others supported it as a useful
"isolationist" response to the "internationalism of
Franklin Roosevelt and Harry Truman.

The Bricker Amendment, approved by the Senate Judiciary Committee in June
1953, reaffirmed the Constitution's supremacy over treaties;
required implementing legislation "which would be valid in the
absence of treaty" before a treaty could be effected within the
United States; and granted Congress the authority to regulate all
executive agreements.

President Dwight D. Eisenhower opposed the amendment on grounds that it
would hamstring the presidency in the conduct of foreign policy. In a
letter to his brother Edgar, an attorney who supported the resolution,
Eisenhower declared that it wold "cripple the executive power to
the point that we become helpless in world affairs." The Eisenhower
administration was keenly aware that most Republicans embraced the
proposal and thus its opposition was carefully measured. After failing in
his efforts to seek compromise with the Bricker forces, Eisenhower sought
assistance from Senate Democrats. Senator Walter George of Georgia
introduced his own amendment, which reiterated the Constitution's
supremacy over treaties and executive agreements. In a key passage that
reflected the widespread opposition to the expansive use of unilateral
executive agreements, the George proposal would have required implementing
legislation for executive agreements (but not for treaties) to take effect
within the United States. The Eisenhower administration lobbied
intensively for the defeat of both the Bricker and George proposals,
principally because advisers believed it would strip the president of
important prerogatives and transfer authority over foreign affairs from
the executive to the legislative branch. The Bricker Amendment was
defeated in the Senate on 25 February 1954 by a vote of 50 to 42. But the
George Amendment fared better; it fell just one vote short of the
two-thirds required for approval.

Congress has attempted to curtail the practice of making secret executive
agreements. A subcommittee of the Senate Foreign Relations Committee
learned in 1969 and 1970 that U.S. presidents had negotiated significant
covert agreements with South Korea, Laos, Thailand, Ethiopia, and Spain,
as well as other nations. In response, Congress passed the Case Act of
1972, requiring the secretary of state to send to Congress within sixty
days the text of "any international agreement, other than a
treaty," to which the United States is a party. If the president
decided that publication would compromise national security, he could
transmit it to the Senate Foreign Relations Committee and the House
Committee on Foreign Affairs under an injunction of secrecy removable only
by the president. But presidents from Nixon to Clinton ignored or
circumvented the statute, and congressional enforcement efforts have been
largely ineffective.